Re-Contextualizing Medical Marijuana Reimbursements in Anticipation of Its Legalization

SEAN HUGHES—Currently, there is strong bipartisan support at the federal level for the legalization of medical and recreational marijuana. The Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act is bipartisan legislation that removes marijuana from the Controlled Substances Act (CSA), thus decriminalizing marijuana at the federal level and enabling states to define their own laws regarding marijuana. According to a recent Gallup poll conducted in late 2020, support for the legalization of marijuana from U.S. adults reached an all-time high of 68%. The 2020 election also reflected the strong preference for the legalization of marijuana as an additional four states legalized it for recreational use.

While there is a large amount of bipartisan support for the MORE Act, potential decriminalization on a federal level inherently leaves a number of complex legal issues for state legislatures and courts to determine for that individual state. For instance, state courts are currently split over whether workers’ medical marijuana should be reimbursed for employees. In 2014, a New Mexico Court of Appeals established that medical marijuana claims could be reimbursed, and that the state’s compassionate use law was not preempted by the CSA. In short, if an employee who used medical marijuana for pain was injured on the job, their former employer and the company’s insurer had to reimburse them for marijuana as they would with other medications. The three-judge panel relied heavily on the Obama administration’s enforcement priorities which emphasized that the administration would not block state marijuana laws—an ideological stepping stone to the MORE Act’s decriminalization scheme.

With the change in administration in 2016, former Attorney General Jeff Sessions rescinded the Obama-era guidelines that effectively removed marijuana from the list of federal drug enforcement priorities as more states legalized marijuana within their borders. This prompted some state courts to look at the question of preemption more closely, as Sessions allowed individual U.S. attorneys to decide how aggressively to pursue marijuana charges within their respective jurisdiction. In June 2018, the Maine Supreme Court ruled that an employer did not have to pay for the medical marijuana costs of a man who was using it to help his chronic back pain after suffering from a workplace injury. The court stated that any order requiring an employer to compensate a worker for medical marijuana would force a violation of the CSA because the employer would necessarily be aiding and abetting the acquisition and possession of an illegal substance. However, in January 2020, the New Jersey Appellate Division ruled that employers in the state must reimburse employees for medical marijuana following a workplace accident, despite the federal prohibitions against cannabis distribution. Following the 2014 New Mexico Court of Appeals case, these two rulings furthered the state-law schism on medical marijuana and reimbursement.

Most recently, a Massachusetts appellate court held in February 2021 that insurance companies and other parties cannot be compelled to reimburse injured employees for their federally illegal medical marijuana use. The Supremacy Clause of the U.S. Constitution provides that if there is any conflict between federal and state law, federal law shall prevail; this is the basis of the doctrine of preemption. Marijuana is currently listed as a Schedule I drug under the CSA, implying that it has a high potential for abuse, does not have a currently accepted medical use for treatment, and poses unacceptable safety risks even under medical supervision.

Because marijuana is illegal at the federal level, many courts argue that the CSA might preempt some state marijuana laws. Conflict preemption occurs when a state law conflicts with a valid federal law such that it is impossible to simultaneously comply with both, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress (i.e., federal law). The CSA’s preemption is restricted to circumstances where “there is a positive conflict between” a provision of U.S.C. Title 21 and a state law “so that the two cannot consistently stand together.” In the current context, this means that if an eligible patient can comply with both the CSA’s prohibition of the manufacture, possession, or distribution of marijuana, and a state’s law decriminalizing the possession of marijuana for medical use, there is no “positive conflict” that would trigger preemption. Because the CSA makes it clear that it preempts state law under limited circumstances, only four states have considered whether their medical marijuana legislation is preempted by the CSA. The state courts look closely to the language of their own marijuana legislation and determine if there is a conflict in which the state and federal law cannot stand together.

However, these preemption issues become moot if marijuana is removed from the CSA altogether. If marijuana is no longer listed as a Schedule I drug, it will no longer be illegal to participate in the manufacturing, possession, or distribution of marijuana. Though the legalization of marijuana appears closer than ever, in order for insurance companies to be able to cover the costs of medical marijuana they would have to add it to their drug formulary, a list of medications approved for its members. This would then require approval from the Federal Drug Administration which could take years. Only then would it be added to an insurance company’s drug formulary as a valid medication to be reimbursed by employers. With the changing of the administration in 2021 and the ideological makeup of the House and Senate leaning left, the legalization of recreational and medical marijuana across all fifty states is becoming more of a reality. The MORE Act passed the House in December 2020 and Senate Majority Leader Chuck Schumer stated that legalization would be a major priority in the Democratic controlled Senate. Ultimately, it is extremely likely that the MORE Act will pass in the near future, or at least some marijuana reform at the federal level, and these preemption issues that state courts now face will likely no longer be an issue.